Employment Law Daily Ford forklift driver’s worker’s comp retaliation claim revived
Wednesday, June 29, 2016

Ford forklift driver’s worker’s comp retaliation claim revived

By Lisa Milam-Perez, J.D. The Seventh Circuit revived the reprisal claims of a former Ford forklift operator who alleged he was fired for exercising his workers’ compensation rights. Genuine disputes remained as to the motivation behind his discharge, particularly given conflicting physician opinions regarding whether he was capable of operating a forklift with his injured wrist, and given that the absences for which he was ostensibly fired were directly tied to this factual dispute (Baptist v. Ford Motor Co., June 27, 2016, Sykes, D.). Wrist injury. The employee, who operated a forklift at a Ford assembly plant in Chicago, was on the job for less than three months when he drove a forklift into a pillar, jamming his hand on the steering wheel and injuring his left wrist. He went to the company medical department and filed an injury report, which triggered a review and investigation by Ford’s outside workers’ comp administrator. Both Ford’s physician and the outside workers’ comp benefits administrator were suspicious. Comparing notes by email, they observed that he did not properly report the incident and that he refused to release his medical records from a previous workers’ comp case—an injury to his other wrist—that he brought against a former employer. They forwarded the results of their investigation to Ford’s labor relations department. Meanwhile, the company’s workers’ compensation fund paid for his initial visit to an orthopedic surgeon, who diagnosed the employee with a ligament tear, but Ford denied any further coverage. That denial sent the parties to litigation, now pending, before the Illinois Workers’ Compensation Commission. Refusal to operate forklift. Two months after his injury, the pain in his wrist worsening, the employee left work early to seek additional medical attention. His orthopedic surgeon now diagnosed him with a complete ligament tear and recommended surgery. The surgeon submitted a form to Ford explaining that the employee was unable to perform his essential job functions, but that he was not totally disabled, or even "totally unable" to perform his job. He recommended four to six weeks off work after surgery, but cleared him to return earlier as long as he didn’t grip more than 5 pounds with his hands. Ford’s physician determined that this restriction didn’t impair his ability to operate a forklift, and she cleared him for duty. But the employee refused to return to work. He insisted his physician’s restriction wouldn’t allow him to operate a forklift, and he wanted a different job. Ford suspended him for a month and, thereafter, he met with the Ford physician and a labor representative, who instructed him to return to the forklift operator position. But he still refused, fearing it would exacerbate his injury. After three consecutive missed days of work, he was discharged. Retaliation claim. The employee sued, alleging he was fired in retaliation for filing a workers’ comp claim. He submitted an affidavit from his physician contending that his lifting and gripping restrictions would prevent him from driving a forklift. The physician also stated that "no full duty return to work date could even be entertained until it was first determined how he was progressing from the surgery." The employee also asserted that Ford’s labor representative told him he would be fired unless he stated that his injury didn’t happen at work—but that if he did, he would be approved for a leave of absence. (The labor representative denied this exchange took place.) Still, the district court granted summary judgment to Ford, concluding no reasonable jury could find his discharge was causally related to workers’ comp retaliation. The employee had never responded to Ford’s statement of undisputed facts that, in firing him, the company had relied solely on his attendance record. Consequently, he was deemed to have admitted this fact. Fact disputes remained. On appeal, the Seventh Circuit reversed, finding the lower court erred in concluding the employee did not provide sufficient facts to support a common-law retaliatory discharge claim under Illinois law. There was enough in the record to infer that the Ford physician’s hostility to the employee’s request for workers’ compensation coverage motivated her decision to clear him for work despite his own physician’s opinion that he needed surgery, plus four to six weeks’ recovery, and without regard to the employee’s medical condition. The conflicting opinions between the two physicians as to his ability to operate a forklift should have precluded summary judgment as to the reasons underlying his discharge. And while Ford said the employee was fired for absenteeism, his absences were directly tied to the ongoing disagreement about whether he was physically able to operate a forklift. This, coupled with the Ford physician’s email exchange with the outside benefits administrator, allowed for an inference that she was hostile to the employee’s exercise of his workers’ comp rights. A reasonable jury could infer that the motive behind her decision to clear the employee to work was to pressure him to compromise or forgo exercising his workers’ compensation rights. A triable issue remained, too, as to whether the labor representative tried to coerce the employee into abandoning his workers’ compensation claim. Ford said the labor representative didn’t even have the authority to remove the employee’s absences, thereby saving his job; however, a jury could believe the statement was nonetheless made, and the labor representative’s lack of actual authority didn’t necessarily render her alleged coercion immaterial. Accordingly, the appeals court vacated the district court’s grant of summary judgment in Ford’s favor.

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